Child Custody for Native American Families

Are there new developments on the horizon for Pennsylvania Child Custody Laws?

On Friday, January 4, 2013, the United States Supreme Court announced that they will hear a case called Adoptive Couple v. Baby Girl. Out of South Carolina, the is about the rights of the father of a young girl who was born without “tribal membership” under the Indian Child Welfare Act (ICWA) of 1978. The Court will take on two questions about the ICWA: (1) whether a parent can, under the act, block a voluntary and lawful adoption by a non-Indian parent, and (2) whether the ICWA protects the rights of an unwed biological father who never took steps to claim legal paternity.

The ICWA was passed in response to an extremely high rate of placement of Indian children into foster homes. A means of preserving their culture, the ICWA gives exclusive right to tribal courts to determine the adoption and custody of all Indian children living on a reservation. Under the act, the tribal courts also, have jurisdiction over Indian children who do not live on the reservations, subject to some restrictions.

In this case, the baby girl was born to her birth mother in Oklahoma (not on a reservation). Her father was an American Indian living on a reservation. The South Carolina Supreme Court ruled that the baby girl had to be returned to her father and her tribe because her father had not been properly notified of the child’s birth under the ICWA. Before this case, the ICWA was only considered in one previous Supreme Court decision, in Mississippi Band of Choctaw Indians v. Holyfield. The outcome of this highly publicized case will have large effects on the procedure for Indian adoption and other family-law related matters involving tribes.